Viatris, Mylan EpiPen Market Antitrust and RICO Violations Class Action

The sharp rise in the cost of EpiPens has been in the news as an example of the astronomical inflation of the cost of drugs. This case brings antitrust claims against Viatris, Inc. (the successor-in-interest to Mylan, NV), Mylan Specialty, LP, Mylan Pharmaceuticals, Inc. and Heather Bresch, alleging that “millions of American relying on this life-saving device have paid exorbitant prices for EpiPens that are in no way tethered to or constrained by a competitive market.” In addition, the already-expensive EpiPens are now sold only in two-packs.

Countless children and adults live with the risk that a severe allergic reaction to common substances might kill them. Many carry EpiPens, which are autoinjectors filled with epinephrine, a drug meant to counter severe allergic reactions. EpiPens are made by subsidiaries of Pfizer and sold in the US by Mylan.

The complaint alleges that, since 2009, the defendants in this case have followed an illegal scheme to maintain a monopoly on EpiPens and have raised their price by more than 600% since 2007, from $100 to $608. According to the complaint, the steep price increases were not necessitated by market conditions, manufacturing costs, epinephrine prices, or any other pressing factor: “They were driven solely by unaccountable executives and companies who sought to profit off of human misery and fear.”

The complaint displays a long list of allegations as to how the companies managed to maintain a monopoly and drive prices so high. They include the following:

• Misclassifying EpiPens in Medicaid’s Drug Rebate Program to save on rebates
• Paying to delay competitors’ products’ entry to the market
• Offering pharmacy benefit managers rebates and incentives to exclude competitors
• Providing free EpiPens to schools only if competing products are not used
• Using deceptive marketing to stop competition
• Claiming there’s a medical need to sell EpiPens only in two-packs
• Intervening in regulatory proceedings
• Enforcing invalid patents to discourage competitors
• Falsely testifying to Congress

On January 30, 2017, the complaint asserts, “the Federal Trade Commission [FTC] announced that it is investigating numerous possible federal law violations by Mylan in connection with the EpiPen.”

The counts include violations of antitrust laws and the Racketeer Influenced and Corrupt Organizations (RICO) Act, among other things.

Two classes have been defined for this action:

• The Nationwide Class for this action is all persons or entities in the US and its territories who bought or paid for some or all of the price for EpiPens, for consumption by themselves, their families, or their members, employees, insureds, and so on, not for resale, between January 1, 2009 and the date the effects of the anticompetitive conduct cease.
• The State Antitrust and Consumer Protection Class is all persons or entities in the Indirect Purchaser State who bought or paid for some or all of the price for EpiPens, for consumption by themselves, their families, or their members, employees, insureds, and so on, not for resale, between January 1, 2009 and the date the effects of the anticompetitive conduct cease.

Article Type: Lawsuit
Topic: Antitrust
Tags: Anticompetitive Actions, Antitrust, Pharmaceuticals